What the Eric Garner Grand Jury Didn’t See

In a statement on Wednesday night, Mayor Bill de Blasio tried to tell New Yorkers that the official response to the death of Eric Garner had involved everything that they would want—sympathetic calls, public mourning, a retraining of the whole police force, “so many reforms this year”—everything, that is, except criminal accountability for the officer who had held Garner in a chokehold in the moments before he died. Word had just come that a grand jury had decided not to indict the officer, Daniel Pantaleo, on any charge at all. De Blasio asked for calm and peaceful protests, and he did not try to defend the grand-jury decision—“Today’s outcome is one that many in our city did not want”—and it would have been hard for him to do so. There was nothing mysterious about Garner’s death, and nothing just about it, either. Because of a cell-phone video, most of the city knew it, too.

The video was why, after de Blasio spoke, marchers took to the streets all over the city, with hundreds in Times Square. Videos have brought out crowds before; often, it’s because they show an injustice or an outrage. The Garner video had done that, but, in a way that now seems maddening, it had also promised justice. When Garner’s mother heard that it existed, she told Jonathan Blitzer, “I said to myself, ‘There is a God.’ “ Having a video removed the ambiguities often inserted into accounts of confrontations between police officers and civilians. Anyone could see Garner talking to a clutch of uniformed and plainclothesmen in front of a store on Bay Street, in Staten Island, on July 17th. He said that they should stop harassing him—the question was whether he was selling loose, untaxed cigarettes. Garner was six feet three inches tall. He was also overweight, asthmatic, and outnumbered. The video shows that he did not move on the police. They moved on him. Pantaleo’s chokehold move is visible, and visibly at odds with the N.Y.P.D.’s own regulations. Pantaleo adjusts his hold only to push Garner’s face to the pavement—he is now lying prone—by which time Garner is saying the last words that he ever will: “I can’t breathe.” Actually, these were his last words:

I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe.

On Wednesday night, protesters were shouting those words across the city and printing them on signs. But, even on the day that Garner died, people yards away heard it (the video captures a man quoting Garner), and the police certainly did as well. When paramedics arrived, they stood around diffidently; the officers did not convey a sense of urgency about anything except getting bystanders to walk away. Garner was not a particularly healthy man, but an autopsy showed that the primary causes of death were “compression of neck (chokehold), compression of chest and prone positioning during physical restraint by police”—the exact actions caught on camera. He was forty-three and had six children.

Staten Island makes Ferguson a lot harder to explain. What happens to the platitudes used to patiently instruct us about differing witness accounts and unanswerable questions, and all the solemn wishes that a camera had recorded the confrontation between Michael Brown, who was eighteen, and officer Darren Wilson? All that uncertainty was supposed to be why the Ferguson grand jury didn’t come back with an indictment. A dispute over facts is often a reason to go to trial, not a reason to avoid it—but even so. None of that mistiness had settled over the events on Staten Island, and there were no charges there, either. And, if doubt is factored out, what’s left? Many observers will notice that in both cases the officer was white, and the dead man was black.

Maybe that’s not it at all; but then New York needs to know why the grand jury turned away from what everyone else saw. The Garner case is so stark that politicians like Senator Kirsten Gillibrand rushed to express support for a federal civil-rights investigation. Eric Holder, the Attorney General, said that there would be one—“independent, thorough, fair and expeditious”—and also talked about how Garner’s death “tested the sense of trust” between the communities and the police. (The investigation should fall to the office of U.S. Attorney Loretta Lynch, who has been nominated to succeed Holder.) “This is an American problem,” President Obama said.

As a matter of process, the route to the failure to indict is probably simple: the prosecutor who presented the case led the grand jurors that way. That’s how grand juries tend to work (and why criticisms of the outcome should not be taken as an attack on individual jurors); the bar for them to find probable cause to charge a person is low, unless—as transcripts show was the case in Ferguson—prosecutors decide to raise it. Given the incarceration rates in this country, most people don’t need a video tape to know that. The proceedings in Staten Island are still secret, but Pantaleo’s lawyer, Stuart London, told the Times that his client spoke to the grand jury for two hours. (Most potential defendants don’t get that chance.) “He wanted to get across to the grand jury that it was never his intention to injure or harm anyone,” London said. Pantaleo repeated that sentiment in a statement on Wednesday, adding that he had become a police officer to “protect” people and that Garner’s death made him feel bad: “My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”

A central issue in cases like this is a failure to fully value black lives. That alone can be deadly. But we should also ask about a companion problem, one that shows itself the most with regard to accountability: an over-weighting of white intentions. As any prosecutor knows, there are offenses on the books that don’t turn on a will to murder, or crude racism, or even unkindness. Officer Pantaleo says that he didn’t want to kill anyone; Officer Wilson was scared. Each of them might still have been charged with a crime.

Amy Davidson is a New Yorker staff writer. She is a regular Comment contributor for the magazine and writes a Web column, in which she covers war, sports, and everything in between.